Constructive Dismissal and delay in resigning
September 15, 2016

When it is too late to say I am leaving and this is your fault

 

Marsons Solicitors have specialist employment solicitors who advise both employers and employees on employment law.

In a recent case (Colomar Mari v Reuters Ltd) it was decided that an employee who had spent 18 months on sick leave before resigning had delayed too long and could not bring a claim of constructive dismissal.

 

Facts: The employee was employed by Reuters as systems support analyst from 1 October 2004. She was off sick with stress, anxiety and depression for 18 months at which point she resigned in October 2012. She brought a constructive dismissal claim in the Tribunal. The employee accepted that the treatment to which she objected took place before she commenced sick leave and sought to justify her delay as follows:

1. She claimed that she was in such a bad way between October 2010 and April 2012 that she was unable to contemplate resignation; and
2. She claimed she had not acted in a way that would lead the Employment Tribunal to make a finding that she had affirmed the contract.

These arguments were rejected by the Tribunal. In particular, as during the 18 months she was off sick, the employee had:

1. made repeated requests for the use of email access to her work email;
2. accepted 39 weeks sick pay;
3. made requests to be considered for permanent health insurance; and
4. organised extensive travel plans

The EAT rejected the employee’s appeal, agreeing with the Tribunal’s analysis and found that the employee had affirmed her contract.
Employees should therefore be careful when they find themselves in a position that could lead to a claim for constructive dismissal. They cannot delay too long and must ensure that they do not act in a way so as to affirm the contract as this could be fatal to a potential claim.

 
For further information please contact Jennifer White, our employment and commercial solicitor at our office in Bromley on 020 8313 1300 020 8313 1300 or jennifer.white@marsons.co.uk